bad faith with a view to frustrating existing proceedings. It further ruled in Allianz vWest Tankers300 that it is incompatible with the Regulation for a court of a member state to make an order to restrain a person from commencing or continuing proceedings before the courts of another member state on the ground that such proceedings would be contrary to an arbitration agreement. However nothing in the Brussels I Regulation or the Lugano Convention prevents an English court from granting an anti-suit injunction against the commencement or continuance of proceedings in a country that is neither a EU member state nor a Lugano Convention country, even if the defendant is domiciled in an EU member state or a Lugano Convention country.301

Interim relief

Article 31 of the Regulation enables application to be made to the courts of a member state for such provisional, including protective, measures as may be available under the law of that state, even if under the Regulation the courts of another member state have jurisdiction as to the substance of the matter.This provision confers an additional jurisdiction, limited to provisional measures. In any event, as the European Court made clear in Van Uden v Deco-Line302 and confirmed in Mietz v Intership Yachting Sneek,303 a court that has substantive jurisdiction under Arts 2 and 5–24 also has jurisdiction to order any provisional or protective measures that may prove necessary.304 Article 31 applies whether the substantive action has already been commenced or is to be commenced subsequently, and extends to cases where the substantive proceedings are to be conducted before arbitrators.305

The principle that underlies Art 31 is that the courts of each member state should be willing to assist the courts of another member state by providing such interim relief as would be available if the assisting courts were seised of the substantive proceedings.306 The type of interim relief most commonly granted under Art 31 will be an order freezing assets that belong to the defendant and are located in the territory of the granting court, so as to prevent their disappearance before the merits of the claimant’s claim have been determined by a court of another member state, and thus to ensure their availability to meet an eventual judgment for the claimant on the merits which will be given in another member state if his claim succeeds. In Reichert v Dresdner Bank (No 2)307 and St Paul Dairy Industries v Unibel Exser,308 the European Court emphasised that Art 31 is intended to avoid losses to the parties resulting from the long delays inherent in international proceedings, and is confined to measures intended to preserve a factual or legal situation so as to safeguard rights whose recognition is sought elsewhere from the court having substantive jurisdiction. Thus it does not extend to an application by a creditor for the revocation of a fraudulent transfer of property by his debtor,

300Case C-185/07, [2009] ECR I-663; on a reference from the House of Lords [2007] UKHL 4.

301See Masri v Consolidated Contractors (No 3) [2008] 2 All ER (Comm) 1146 (CA).

302Case C-391/95: [1998] ECR I-7091.

303Case C-99/96: [1999] ECR I-2277.

304This applies even where the court has stayed its substantive proceedings under Art 27(1), while awaiting a decision on jurisdiction from a previously seised court of another member state, but not where the court has declined jurisdiction under Art 27(2) in favour of the court first seised; see Morgan v Primacom [2005] EWHC 508 (Comm). See also Masri v Consolidated Contractors (No 2)

[2008] 2 All ER (Comm) 1099, where the English Court of Appeal held that, after a competent English court has given a judgment in favour of the plaintiff on the merits of a claim, nothing in the Brussels I Regulation prevents the court from making receiving orders and freezing orders, which operate against the judgment debtor personally and have limited effects on third parties, in respect of assets situated abroad, to pave the way for enforcement of the English judgment on the merits. This is so regardless of where the defendant is domiciled, and of where the assets in question are located.

305Case C-391/95: Van Uden v Deco-Line [1998] ECR I-7091.

306See per Millett LJ in Credit Suisse v Cuoghi [1998] QB 818 (CA).

307Case C-261/90: [1992] ECR I-2149.

308Case C-104/03: [2005] ECR I-3481.

since the purpose of such an application is to vary the legal situation of the debtor’s assets and of the transferee; nor to an application for a measure ordering the hearing of a witness before substantive proceedings are initiated, for the purpose of enabling the applicant to decide whether to bring a case, to determine whether it would be well founded, and to assess the relevance of evidence which might be adduced.309

In Van Uden v Deco-Line310 and Mietz v Intership Yachting Sneek,311 the European Court ruled that the granting of provisional measures under Art 31 is conditional on the existence of a real connecting link between the subject matter of the measures sought and the territory of the forum state. Thus interim payment of a contractual consideration does not constitute a provisional measure within Art 31, unless repayment to the defendant of the sum awarded is guaranteed if the claimant is unsuccessful as regards the substance of his claim, and unless in addition the measure sought relates only to specific assets of the defendant located or to be located within the territory of the forum state. More generally, in Solvay v Honeywell,312 Cruz Villalón AG opined that a court of a member state that lacks substantive jurisdiction can authorise a provisional measure under Art 31 only in so far as that measure has an effect in the territory of the member state concerned and can be enforced there. In Sandisk v Philips Electronics,313 which involved an application for an interlocutory injunction requiring the defendant to give a specified notice to the plaintiff before commencing proceedings to enforce patents, in refusing the application, Pumfrey J explained that the nature of the connection required by Van Uden between the subject matter of the provisional or protective measures sought and the forum territory may be purely physical, by way of the presence of assets in the forum territory, or may arise from control, in that the addressee is present in the forum territory and immediately susceptible to such coercive measures to secure compliance as may be necessary.

In Mietz the European Court also emphasised the importance of ensuring that enforcement under Chapter III in another member state of provisional or protective measures allegedly founded on jurisdiction under Art 31, but which go beyond the limits of that jurisdiction, does not result in circumvention of the rules on substantive jurisdiction set out in Chapter II. For the jurisdiction recognised by Art 31 constitutes, within the context of the Regulation, a special regime. Thus, enforcement under Chapter III must be refused where (a) the judgment was delivered at the end of proceedings which were not, by their very nature, proceedings as to substance, but summary proceedings for the granting of interim measures; (b) the measure ordered, such as unconditional interim payment, is not a provisional or protective measure permissible under Art 31; and (c) the original court either expressly indicated in its judgment that it based its jurisdiction on Art 31, or was silent as to the basis of its jurisdiction.

Under s 25 of the Civil Jurisdiction and Judgments Act 1982 and the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997,314 the English High Court now has power

309However, Art 31 enables an English court to grant a temporary injunction against an alleged breach of contract, in aid of a contemplated substantive action in another member state, to operate until the hearing of an interim application by the court having substantive jurisdiction. See Nike v Rosicky [2007] EWHC 1967 (Ch), where Patten J enforced a sponsorship agreement by granting a temporary injunction preventing a footballer who was domiciled and employed in England from wearing boots bearing a rival manufacturer’s trade mark. The substantive dispute was subject to an exclusive jurisdiction agreement in favour of the Dutch courts.

310Case C-391/95: [1998] ECR I-7091.

311Case C-99/96: [1999] ECR I-2277. See also Comet Group v Unika Computer [2004] ILPr 1.

312Case C-616/10, 12 July 2012.

313[2007] EWHC 332 (Ch).

314SI 1997/302. Under ss 2 and 44 of the Arbitration Act 1996, the English court has a similar power to grant interim relief in support of English or foreign arbitration proceedings. However, neither the power under the 1982 Act nor the power under the 1996 Act extends to an arbitration under the Washington Convention 1965 on the Settlement of Investment

Disputes between States and Nationals of Other States; see ETI Euro Telecom International NV v Republic of Bolivia [2009] 2 All ER (Comm) 37 (CA).